Opinion No. 2013-092

August 5, 2013

Diego Ibargüen, Legal Counsel
Hearst Corporation
300 West 57th Street
New York, New York 10019-3792

Mr. Ibargüen:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the attorney for a television station and its managing editor, is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2011). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this office stating whether the custodian’s decision regarding the release of such records is consistent with the FOIA.

The FOIA request at issue was submitted by your client to the Clarksville School District seeking “any list compiled of the names of staff members or school employees who are members of the Emergency Response Team.” The FOIA requests states that “[t]his list would include the names of each employee who will be carrying guns on school property.” The custodian has classified this document as a personnel record and refused to release it. You ask whether these decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. Not having seen the record(s) at issue, I cannot opine about the disclosure of any specific document. Nevertheless, I can assess how, in general, the FOIA applies to a document that contains only the names of the school employees who are members of the Emergency Response Team. As explained more fully below, it is my opinion that the custodian is correct to classify such a list as a personnel record, but that he is incorrect to withhold the document from disclosure.

DISCUSSION

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld. Because there seems to be no dispute over the first two elements, I will restrict my analysis to the third.

Under certain conditions, the FOIA exempts items normally found in employees’ personnel files.[1] For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records”[2] or “employee evaluation or job performance records.”[3] The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

In my opinion, a document designed to reflect the names of school employees who are members of an official internal committee or group qualifies as a “personnel record” of the school employees who are on that list. While the FOIA does not define the term “personnel records,” this office has consistently opined that “personnel records” are all records other than employee evaluation and job performance records that pertain to individual employees.[4] Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”[5]

While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court, in Young v. Rice,[6] has provided some guidance. To determine whether the release of a personnel record would constitute a “clearly unwarranted invasion of personal privacy,” the court applies a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private. The balancing takes place with a thumb on the scale favoring disclosure.

The balancing test elaborated by Young v. Rice has two steps. First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimus privacy interest.[7] If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public’s interest in disclosure.[8] According to the Arkansas Supreme Court, the public’s interest is measured by the extent to which disclosure of the information sought would “shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.”'[9]

All the FOIA’s exceptions must be narrowly construed.[10] Accordingly, when there is a reasonable doubt about how an exception applies to a given set of facts, we are required to opt for the application that exempts the fewest records. In the context of the personnel-records balancing test, the “thumb on the scale” together with this general rule about exceptions being narrowly construed indicate that, when the privacy interest and the public’s interest are equally weighty, the personnel record must be disclosed.

Whether any particular personnel record’s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.[11]

In this instance, it seems clear that the school employees who are on Emergency Response Team (ERT) list have a greater-than-de-minimus privacy interest. Assuming, for purposes of this opinion, that a school district can develop a policy that will allow staff members to be armed while on school property,[12] then I believe such employees might reasonably contend that revealing such a list could carry a heightened potential to be used for harassment or to compromise the safety of those listed.[13]

Consequently, we must move to the second step to assess the public’s interest in the list. We measure this interest by, as noted above, assessing the extent to which disclosure of the information sought would “shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.”

Given the unusual duties and responsibilities the school district intended to assign to the ERT members, I must conclude that knowing the number of ERTS members and their identities would shed great light on the school district’s performance of its duties. In my opinion, though the privacy interest is weighty, the public’s interest is at least as weighty, which means that the record must be disclosed. Therefore, in my opinion, the custodian’s decision to withhold the document from disclosure is inconsistent with the FOIA.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,



Dustin McDaniel
Attorney General

DM/RO:cyh
[1]This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g. Op. Att’y Gen. 97-368; John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act 187–89 (Arkansas Law Press, 5th ed., 2009).
[2]A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter…. [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”
[3]A.C.A. § 25-19-105(c)(1): “Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.”
[4]See, e.g., Op. Att’y Gen. No. 1999-147; Watkins & Peltz, supra, at 187.
[5]A.C.A. § 25-19-105(b)(12) (Supp. 2011).
[6] Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
[7]Id. at 598, 826 S.W.2d at 255.
[8]Id., 826 S.W.2d at 255.
[9]Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998), quoting Department of Defense v. FLRA, 510 U.S. 487, 497 (1994).
[10]Stilley, 332 Ark. at 313, 965 S.W.2d at 128.
[11] Op. Att’y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.
[12]In this regard, see Op. Att’y Gen. 2013-091 (opining that the Arkansas Code does not authorize either licensing a school district as a guard company or classifying it as a private business authorized to employ its own teachers as armed guards).
[13]Cf. Stilley, supra n. 10.